Wednesday, April 30, 2014

On this second day of Apple v. Samsung II jury deliberations, jurors have put in a request for an easel, paper, scissors, and tape. This -- coupled with the fact that there was no verdict after only a few hours -- could be an indication of this jury intending to have more of an internal discussion than the one in 2012, a couple of members of which did everything they could to subsequently discredit the whole U.S. jury system (in connection with patent cases) through interviews. In particular, one juror told CNET that the jury stopped looking at prior art after the first patent because it was just "bogging [them] down". A few days after the 2012 verdict I identified the fact that the jury did not find any of the patents-in-suit to be invalid as the number one issue (if I do it now, some "fanbois" will nevertheless claim that I've changed my stance). The fact that Apple's most valuable software patent in that case (most of the damages were about design patents, but this one was the relatively most valuable one of the three software patents-in-suit) was rejected by the USPTO in reexamination after the trial, which is why a whole new trial will probably be needed in that first case, vindicates my concern about the jury's position on validity.

I didn't disagree with the 2012 jury's verdict (apart from validity and the fact that I would have actually seen a stronger design patent case in connection with tablets than with smartphones, as Judge Koh did in her preliminary injunction decision as well) nearly as much as with its approach. The approach was not to waste time because everything is easier in a fairly-tale world in which you have good guys and bad guys, all of them easily identifiable.

The jury that is currently deliberating may not be as totally thoughtless as the one in 2012, but the first four questions this jury submitted already show that this jury is, at least at this initial stage of its deliberations, focused on non-technical issues that are not at the core of what the jury must decide. Software patents are technical. The jury should focus on claim construction (understanding the related directions from the court), infringement and non-infringement theories, validity and invalidity arguments. Instead, this jury just confirmed what the Wall Street Journal's Apple reporter Daisuke Wakabayashi said on Twitter yesterday: "With a jury of patent/tech novices, trial comes down to which lawyer can tell the better story." Both parties' lawyers are first-rate, so anything could come out of this jury trial, but if the jury doesn't after the first five questions get to the nitty-gritty technical detail, then it's unlikely to get things right.

As America's most-cited judge, Judge Richard Posner, put it last year, "Judges have difficulty understanding modern technology and jurors have even greater difficulty, yet patent plaintiffs tend to request trial by jury because they believe that jurors tend to favor patentees, believing that they must be worthy inventors defending the fruits of their invention against copycats [...]".

The jury submitted five notes, but the fifth one is just a request for more copies of the verdict form. Each of the first four questions begins with this sentence: "Is there any evidence available to us that would answer this question?" And the questions are:

"What did Steve Jobs say at the moment he directed, or decided to prosecute, a case against Samsung? Was Google mentioned, and/or included in that directive, or subsequent directives, to be included in any way in the case?"

"How were the five Apple patents chosen? Were they identified to Apple execs prior tot he decision to pursue patent infringement, or after?"

"How were the two patents chosen by Samsung to be purchased? Who specifically, and initially, recommended that purchase, and what was his/her title?"

"What did the CEO of Samsung say or write, at the moment he first heard about Apple Corp. [sic] believing Samsung was infringing their intellectual property? What subsequent direction did he give to his team as to how to respond?"

I don't know all the trial exhibits. It's possible that there are no answers to these questions in the exhibits. I guess there is none. Even if there was any, this would not only be irrelevant to the key questions of infringement and validity, but it also has nothing at all to do with the question of whether any infringement, if identified, was willful (except for the fourth question).

These four questions are phrased in a non-judgmental form, but they do show that the jury considers these questions at least potentially relevant to its decision, though they are all irrelevant to the substance of the case. At best the jury could draw some conclusions from answers to these questions concerning the credibility of lawyers and witnesses. For example, Apple denied Google's involvement (while highlighting an indemnification agreement with Samsung, which contradicts Apple's own denial of Google's key role), so if the jury was now pointed to evidence that Steve Jobs sued device makers (like HTC initially) as a means of attacking Google, it could now undermine Apple's credibility. Evidence to the contrary could undermine Samsung's credibility, obviously. But either way this does not make a patent stronger or weaker, or more or less distinguishable from the prior art. Same with Samsung's patents-in-suit, of course.

At some point the jury may also ask questions relating to the infringement and validity issues in the case. Maybe it just wanted to start with the simpler, non-technical stuff before moving on to the decisive technical issues.

I now understand from tweets bearing the #appsung hashtag that Judge Koh will tell the jury they can just consider the evidence they have and not ask for other evidence. So the jury won't get the answers it hoped for. And it probably won't find them in the evidence it has available.

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About Me

Florian Mueller is a former award-winning intellectual property activist with 25 years of software industry expertise spanning across different market segments (games, education, productivity and infrastructure software), diverse business models and a variety of technical and commercial areas of responsibility. In recent years, Florian advised a diversity of clients on the patent wars surrounding mobile devices, and on their economic and technical implications. (In order to avoid conflicts of interest, Florian does not hold or initiate transactions in any technology stocks or derivatives thereof.) He is now developing a game app for smartphones and tablet computers.